GLADSTONE PORT DREDGING – CLASS ACTION

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Overview Video on who is eligible

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Update on the Court Case

The Court Case has moved a fair way since our update in July.  GPC filed its “Defence” to our claims in early September and there followed some arguments about the various court papers from both sides.

We are now starting on “disclosure”, which is the process requiring the lead plaintiffs to produce their relevant documents to GPC, and GPC to produce its relevant documents to us.  We expect it will take until at least April next year for each side to find and process its own documents, and then review the documents from the other side.  Obviously this will give us real insight into what was going on within GPC during the dredging and Bund-filling work.

In addition to “disclosure”, we served subpoenas for documents on the DAF for its industry-wide catch data, on GPC’s water-monitoring contractor (Vision Environment) for water quality records, and on the ABC for TV footage of the Port works underway.  We have received the DAF data and it is being reviewed.  We expect to get the Vision and ABC material shortly.

Your records

Separate from the process of preparing the case for trial, we need to collect our clients’ individual records to help estimate the total size of the claim (and the size of individual claims) in the hope of negotiating a settlement with GPC rather than go to trial.

For that reason, all our clients will be contacted in the next few weeks by Law Essentials and our staff.  We need to collect various records relating to your individual losses, and also get signed permissions from you to obtain other records from your accountants.

It is very important that you not discard any records relating to your businesses.  It is possible that we might need them in order to establish your loss and damage in the Court Case.

Funding agreement

Before the Court Case started we expected that the litigation funder who would front all of the legal costs in this matter would be a company who ultimately decided not to assist us.  We then secured litigation funding from another company, LCM.

Because of that change, we need our clients to sign replacement “retainers” with us, and a replacement “funding agreement” with LCM.  Law Essentials will speak to you about that when they contact you to get your loss records.

Who’s covered by the Court Case

We hear there are still rumours about who is or isn’t covered by the Court Case.  It is not just for “fishermen”.  It covers licence holders, skippers and crews who worked in defined DAF grids, and processors and fish transport operators, and wholesalers.  In short, if your business handled fish, scallop, crab or prawn meat then you are probably covered by the Court Case.

Also note that the ‘Affected Waters’ in respect of the claim has increased, which means that anyone that caught prawns, scallop and bugs south of Fraser Island in grids W33, W34, W35, W36 may also be covered by the Court Case.

To be absolutely clear about this, the actual “group definition” in the Court Case makes clear that the case is brought on behalf of the three named plaintiffs and everyone in any of the three following “subgroups”:

(1)          Commercial Fishing Group Members: being those persons that:

(a)       for at least some period, from around 6 September 2011 to date;

(b)       generated income as the licensee of, or owner, operator or profit-sharing skipper, or profit-sharing crew member on a fishing boat under a commercial fishing license; and

(c)       did fish for commercially saleable fish including (but not limited to) scallops, bugs and prawns (harbour and ocean), mudcrab and other crabs, queenfish, barramundi, catfish, mullet, sole, bream, herring, whiting, salmon, coral trout, trevally, shark and mackerel in the grids in (i) below, and/or did fish for commercially saleable fish including (but not limited to) scallops, bugs and prawns in the grids in (ii) below:

(i)     (north of Fraser Island up to Yeppoon) R28, R29, S28, S29, S30, T28, T29, T30, T31, U30, U31, U32, V30, V31, V32, V33, W31 and W32; and/or

(ii)    (south of Fraser Island) W33, W34, W35, W36

(i.e. together the defined ‘Affected Waters’ in the Court Case)

(NB. This includes coral trout that was damaged or perished when brought into the Affected Waters).

(2)          Fish Handling Group Members: being those persons that:

(a)       for at least some period, from around 6 September 2011 to date;

(b)       conducted business in  the processing (including cleaning, packaging, freezing, storage and transportation) of fish caught by the Commercial Fishing Group Members (as above) in the Affected Waters (as above).

(3)          Wholesaler Group Members: being those persons that:

(a)       for at least some period, from around 6 September 2011 to date;

(b)       conducted business with operations in Queensland, or New South Wales, or both, purchasing fish for wholesale, as caught in the Affected Waters (as above), from either the Commercial Group Members (as above) or the Fish Handling Group Members (as above).

 Other matters

Please remember that our communications to you and the other claimants are covered by legal privilege and are confidential.  It is very important that you not disclose information from us to anyone except other claimants, or your private legal or financial advisors.  Please respect this, in the interests of all the claimants.

 PLEASE NOTE:-

The part highlighted in yellow above, namely:-

 did fish for commercially saleable fish including (but not limited to) scallops, bugs and prawns in the grids in (ii) below:

(ii) (south of Fraser Island) W33, W34, W35, W36

This means that the claim has extended to also include Trawlers who trawl from the top of Fraser Island, right down to Bribie Island in W33 – including whether they trawled for scallops or prawns.  We also need these people to sign up to make their claim.

Contact our office to get the documents to sign if you want to bring a claim.

Regards,

CHRIS THOMPSON | Director/Solicitor

 07-4197 5600

Successful Licence Sale Injunction

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Recently our client entered into a verbal agreement with another party to buy from them a fishing licence with certain fishing quota and fishing symbols attached to it. After the deal had been agreed to, the other party then attempted to say that there had never been any agreement to sell.

The other party then attempted to sell the licence and quota and symbol to an unrelated third party, without telling our client. When our client found out he asked us to write to the seller to see if the seller would provide a written undertaking not to sell to the third party or to any other party. When the seller refused to provide the undertaking, our client asked us to seek a Court injunction preventing the seller from selling or in any other way dealing with the licence, and if the seller had already sold or otherwise dealt with the licence, to prevent the seller from disposing of or using the proceeds of the sale.

Within 24 hours an urgent Application was made to the Brisbane Supreme Court. The Court gave an injunction to our client which prevented the seller from selling or otherwise dealing with the licence, quota and symbol, as well as an injunction preventing the seller from dealing with any proceeds from the sale or other dealing of the licence.

We immediately notified QFS of the court order, and they then noted their register by putting a “Stop Notice” on the subject licence, the effect of which would be to alert QFS to the fact that they shouldn’t process any transaction relating to the licence.

Court proceedings are continuing, and so it is not appropriate to disclose the name of either our client or the seller.

Reef Queensland Success Stories

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W –v- QFS

This Fisherman had a boat that was damaged by pin-holing. It could not be used from 20 April 1996 to approximately 9 January 1997.

QFS wouldn’t give the fisherman an RQ Symbol, as they claimed that the event-based special circumstance had not happened for 9 months during 1996. This was important, as if it was for in excess of 9 months, an RQ Symbol would be given, but if it was under 9 months, there was no entitlement to RQ Symbol and Quota.

We argued that “at least 9 months” should be interpreted as affecting at least 9 calendar months in the year”. QFS argued that it had to be for 9 full calendar months. If the Tribunal accepted that if any day in a particular calendar month was affected, it counted as one of the 9 months, our client would succeed.

The Tribunal accepted our submission, found that the period 20 April 1996 to 31 December 1996 was a special event “for at least 9 months” during 1996, and an RQ Symbol and Quota was granted.

Reef Queensland Success Stories

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M –v- QFS

This Fisherman wanted an RQ Symbol, but missed the 500 kg cut off in a particular year.

We reviewed the log book history and found an entry that could have been 15.2kg, or perhaps 152kg.

QFS argued that it was 15.2 and that the decimal point was clear. However, the Tribunal accepted our Submission that there was some doubt, and any doubt had to be interpreted to benefit the fisherman. The Tribunal accepted the entry was possibly 152, and that once the possibility existed, QFS were obligated to accept the entry as 152 kg. An RQ Symbol was granted.

Reef Queensland Success Stories

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Z –v- QFS

Wednesday 11 May 2005 – An L2 licence holder missed out on RQ because previous licence holder had entered some false information in the log books. We were able to prove that this happened intentionally. However, the Tribunal ultimately awarded an RQ and Quota based upon the fact that several of the log book entries did not record whether the weights were whole fish, gutted or fillets. The Management Plan Provisions required QFS to use the interpretation that was most beneficial to the fisherman. In this case, if the incomplete entries were for fillets, you had to multiply the weight by at least 2 times! When this interpretation was applied, the licence holder did just meet the criteria of 500 kg in a particular year.

The Tribunal agreed with our interpretation of the legislation and awarded an RQ Symbol, much to the disappointment of QFS!

Successful Restructure Grant Application

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On 1 July 2004 the Commonwealth Government closed off 33% of the Great Barrier Reef Marine Park to fishing. The impact on Commercial Fishermen and Fishery Related Business has been significant.
The Government therefore set up a Business Restructure Assistance Package whereby affected businesses can apply for a one off lump sum payment to assist in overcoming the impact caused by the closures.

Our client was a third generation trawler fisherman. Prior to the closures his business was viable, returning a net profit of between $60,000.00 and $105,000.00 per annum leading up to the closures. Our client intended continuing with the business until retirement. Over the past 20 or so years since leaving school he had only worked in the family fishing business, which he now owns.

He did not have any income protection insurance, life insurance or any superannuation. Without the ability to continue his business he would be forced to tie up his fishing vessel and seek employment on the open labour market as a middle-aged man with no relevant skills outside of the fishing industry.

Our client decided to make an application to the Government for a restructure grant. We were engaged to make the application on his behalf and determined that our client’s business suffered a 10% loss of gross business income as a result of the closures. After considering all of our client’s circumstances, we determined that he was eligible for a restructure grant of up to $207,000.00 and submitted his application to the Government.

Our client’s restructure options were to use the Government grant to either make capital improvements to his trawler, retire business debt or purchase extra ‘fishing days’ to increase his income levels. Our client’s preferred option was to retire his significant business debts as this would enable our client to improve his overall cash flow position, so that he could re-structure his business operations and continue to operate at a viable level.

After considering the Application, the Government made an offer of $192,000.00 which our client accepted.